2003 PLP (C (PLC(CS))

6. He also contended that while joining service in the Punjab Govt. Farrukh Bashir, petitioner was examined by a Medical Board and was found medically fit and is serving as a Section Officer. The other certificates of the Opthamologist were also relied upon including the certificates of Dr. Muhammad Tayyab, Professor of Ophthalmology Post‑Graduate Medical Institute, Lahore, dated 29‑10‑2002 and 11‑11‑2002. According to the certificate dated 11‑11‑2002, the petitioner‑Farrukh Bashir did not suffer from any eye disease which was likely to render him unfit for service at a future date. He also referred to Text Book of Ophthalmology by H.V. Nema Nitin Nema, Third Edition, General Ophthalmology, by Denial Vaughan 15th Edition, and Basic Ophthalmology by Professor Dr. M. Saleem Akhtar to contended that a minor degree of squint was capable of correction. However, his emphasis has been that a smaller degree of squint is not a disqualifying factor in accordance with Regulation No.24. In the case of Dr. Kashif Bashir, he submits that the only defect found by the Central Medical Board in the letter dated 25‑10‑2002 was that the said petitioner was suffering from squirt of 25 degree. The Central Medical Board, on this occasion, did not find him over‑weight. However, in the letter dated 7‑11‑2002 while the petitioner was declared unfit due to squint and over weight by the Central Medical Board neither the degree of squint nor the excess‑weight was specified and in his case also the only Ophthalmologist on the Appellant Board was Dr.. Farooq Afzal, and even in the decision of the Appellate Medical Board neither the degree of squint nor the excess objectionable weight of the petitioner Kashif Bashir was specified.

7. Ch. Riyast Ali, Advocate represents Miss Fatima Saleem‑petitioner in Writ Petition No.579 of 2003. He contends that "hypertension" i.e. the blood pressure is not as such a disease which could stand in the way of efficient performance of her duties. As far as the defective vision is concerned, he submits that the defect noted was the disease of old age and this is the reason that the Central Medical Board had also observed that "this may create complication in future". He also relied on opinion of the other doctors and also adopted the argument that the Central Medical Board did not record a finding that because of hypertension or defective vision, the petitioner was unfit for service under the Federal Government He also relied on the opinion of the medical specialists dated 12‑10‑2000 and 11‑10‑2000 respectively of Farmkh Iqbal of Zayed Hospital, Dr. Sajid Abaidullah, Mayo Hospital, Dr. Hassan‑ul‑Banna of Mayo Hospital. According to the report of Dr. Farrukh Iqbal, the petitioner is a bit anxious and that may explain fluctuation in her blood pressure readings. According to the report of Hassan‑ul‑Banna the blood pressure was due to apprehension.

8. On the other hand, the learned Deputy Attorney General relied on Regulation No.1 which invests absolute discretion in the Government of Pakistan to reject as unfit any candidate whom they consider on the report of the Medical Board to be physically declared disqualified for service and their discretion in no respect is limited by these regulations. He then referred to Regulation No.10, according to which as squint, without reference to the degree, is a disqualifying factor. Regulation No.21 regarding the defect of the vision was also relied upon. He next contended that although there was no clear finding recorded by the Central Medical Board or the Appellate Medical Board that defects noted in the petitioners were likely to interfere in efficient performance of the duties nevertheless the requirement of medical examination was for this purpose and even the appeal was filed by the petitioner to seek reversal of the decision of the Central Medical Board. He further contends that no ulterior motive has been alleged against the Members of the Central Medical Board or the Appellate Medical Board to doubt the bona fides of their decision. He strenuously relied on Article 150 of the Constitution to contend that full faith and credit must be given to the acts of the Federal Government and its functionaries and all efforts should be made for validating their actions rather than destroying them. He relied on Government of Sindh through the Chief Secretary v. Khalid. Ahmed and others (1994 SCMR 782), Lahore Improvement Trust, Lahore v. The Custodian Evacuee Property West Pakistan Lahore and 4 others (PLD 1971 SC 811) and Chairman East Pakistan Railway board Chtagang v. Abdul Majid Sardar Ticket Collector Pakistan Rilwyas (PLD 1966 SC 725). He next contended that scope of judicial review in such cases was limited and this Court cannot substitute its opinion for the opinion of the public functionaries formed after proper consideration of the relevant facts. About Dr. Farooq Afzal he submits that while giving report in favour of Furrukh Bashir he was "trapped". He submits that Dr. Farooq Afzal examined the petitioner Farrukh Bashir as a private potient and, therefore, no credence could be attached to the certificate favouring the petitioner.

9. The Civil Surgeon who was in attendance was specifically asked by me whether weight alone of a person could stand in the way of efficient performance of duties. Her answer was that if a person was not suffering from any disease, the weight by itself was not a factor to prevent efficient discharge of duties but added that excess weigh is the root cause of all diseases.

10. I have considered the submissions made by the learned counsel for the parties and have perused the record. The petitioner Farrukh Bashir is particularly relying on the certificate of Professor Dr. Muhammad Tayab dated 11‑11‑2002 with reference to memorandum dated 7‑11‑2000 of the Federal Public Service Commission. His opinion about this petitioner was:‑‑ "His myopia is NOT, High and he does not have any significant Retinal degeneration. His exodeviation is only cosmetic and in short he does not suffer from any eye disease which is likely to make him unfit for service at future date." According to the certificate of the Dr. Farooq Afzal dated 14‑11‑2002, this petitioner was examined with reference to the comments of the Central Medical Board on his visual examination. According to his certificate:‑‑ "On examination his vision is 6/6 with glasses, and with each eye. Medias are clear, and normal intra‑ocular pressure. A manifest squint (Exotropia) of right eye is present. It measures approximately 12 deg. for near and 5 deg. for distance, with glasses. Fundal examination reveals, very mild pigmentory change at right fovea. No retinal degeneration of myopic association is seen. ....Options of surgical correction of squint have been discussed with him alongwith prognosis".

11. As far as the petitioner Kashif Bashir is concerned, the certificate of Dr. Hamid Mehmood dated 16‑11‑2002 was issued with reference to the letter dated 2‑21‑2001 CSS (R.No. 1770). This is dated 7‑11‑2002. According to this certificate: "He has visual acuity of 6/6. Both eyes wearing 1.75 DS both eyes. His ocular movements are full. There is 10 exodeviation of divergence excess type with good binocular function on work for dot test. His anterior segments, IOP and fundi are normal." ..... "He is advised to wear his correction and convergence exercises. This condition is compatible with a job not requiring fine stereo scopic binocular vision and is unlikely to deteriorate any further. I have read the Rules and Regulations regarding physical fitness required of candidates for competitive examination. "

12. As far as the petitioner Saleem Fatima is concerned, Dr. Hassan‑ul- Banana Associate Professor certified on 11‑10‑2002 that her blood pressure at home was found to be within normal limits. He also stated that he was aware that she had already been examined by Central Medical Board and that he had read rules and regulations. The other certificate produced by her was issued by Dr. Naeem Ullah, Eye Specialist of Chohan Clinic. According to this certificate he did not find any trace whatsoever of hypertension retinopathy and she could not have this retinopathy at this stage. This certificate also recites that he had gone through the rules and knew the parameters of the fitness.

13. It may also be noted that the Central Medical Board had not answered question No.20 in the pro forma relating to Farruk Bashir. In case of petitioner Kashif Bashir, the said question was answered in the negative but in the remarks column, he was declared "unfit". To my mind to be medically fit or unfit is one thing and to be unfit for efficient discharge of duties is quite another. A common feature of the cases of Dr. Kashif Bashir and Farrukh Bashir is that the Central Medical Board or the Appellate Board did not record their opinion that the defects noted by them were likely to interfere in efficient discharge of duties as required by Regulation No.24. The aforesaid regulation, on a bare reading shows that it is mandatory. There is an apparent wisdom in it. A candidate who has successfully competed for the CSS Examination should not be eliminated unless the defect is of such a nature which is likely to interfere with the efficient performance of the duties by an officer.

14. Another common feature of the cases of Farrukh Bashir and Dr. Khashif Bashir is that the only Ophthalmologist, on the Appellate Board was Dr. Farooq Afzal. While examining Farrukh Bashir with reference to the decision of the Central Medical Board he gave a favourable report. However, contrary to his earlier opinion, while sitting as member of the Appellate Board, he found the petitioner Farrukh Bashir as unfit. The contention of the learned Deputy Attorney‑General that Dr. Farooq Afzal was "trapped" by Farrukh Bashir at the time he issued the certificate dated 14‑11‑2002 is hardly acceptable. His inconsistent opinion regarding Farrukh Bashir erodes the credibility of his opinion as member of the Appellate Board. It is not denied that there was' no other Ophthalmologist on the Appellate Board and the defect of vision could only be determined by an Ophthalmologist. Dr. Farooq Afzal was the member of the Appellate Board who examined Dr. Kashif Bashir, He too had favourable opinion recorded by other Ophthalmologist. Therefore, his opinion regarding Dr. Kashif Bashir also could not be relied upon.

15. As far as Farrukh Bashir and Dr. Kashif Bashir petitioners are concerned, they have also been found to be over‑weight. As far as Farrukh Bashir is concerned according to the letter dated 13‑9‑2002, he was found to be over‑weight by 41kg while according to the letter dated 29‑10‑2002, he was found to be over‑weight by 33kg. However, according to the decision of the Medical Board as conveyed to the said petitioner in letter dated 7‑11‑2002, he was declared unfit only for the defect in vision. It appears that the objection as to the weight was given up at this stage. The Appellate Board, however, added that he was over‑weight by 37kg. Likewise the objection against Dr. Kashif Bashir was that he was, over‑weight by 10kg as indicated in the letter dated 28‑8‑2002 but in the letter dated 29‑10‑2002, the objection as to his weight was dropped and defect of vision was noted. However, in the letter dated 7‑11‑2002 again the Central Medical Board declared him unfit due to squnit and over‑weight. The excess‑weight, however, was not specified nor it was specified by the Appellate Board. The question was whether excess‑weight alone could be a disqualifying factor. According to the opinion of Civil Surgeon expressed before this Court weight alone did not stand in the way of efficient performance of the duties. It may also be noted that the regulations only provide for the minimum weight as 43.5kg and not the maximum weight which was otherwise capable of reduction. However, for the order proposed to be made, I am not expressing any final opinion on this question.

16. It may also be noted that in Writ Petition No.579 of 2003 by Miss Fatima Saleem, it was averred in ground "b" of the petition that Mr. Raza Shah at Sr. No. 128 was selected although he was squint. This averment has not been specifically denied in the comments submitted by the respondents. As far as petitioner Miss Saleem Fatima is concerned, the regulations for physical examination do not specify hypertension as a disqualifying factor detail guidelines have been provided in the aforesaid regulations particularly in Regulation No.

23. Her detailed examination by the Central Board (on the pro forma) has not been placed on record nor the taken by the Appellate Board has been brought on the record. According to the letter dated 9‑10‑2002 she was found unfit for hypertension BP 150/100 after medication and "hypertension retinopathy". This may create complication in future." And, according to the opinion of Dr. Naeemulah she cannot have this retinopathy at this stage and with this physique. The aforesaid letter, however, does, not show that the requirements of Regulation No. 24 were kept in view by the Central Medical Board in her case as well.

17. Therefore, while declaring the three petitioner as unfit, the Central Medical Board did not comply with Regulation No.24 which, as observed above, is mandatory and could not be left to the guess work as suggested by the Learned Deputy Attorney‑General so as to deprive a successful competitioner of an opportunity of advancement in life. Non‑compliance of the aforesaid regulation at least creates a doubt whether the Central Medical Board or the Appellate Board were only recording their opinion as to medical fitness or it necessarily included fitness for service in the Federal Government and benefit of doubt has to go to the candidates rather than to the Central Medical Board or the Appellate Board.

18. The submissions of learned Deputy‑Attorney General have duly been considered. As far as the first contention based on Regulation No.1 is concerned even "the absolute discretion" of the Federal Government is regulated by the report of the Medical Board and although the discretion was not limited by the said regulations yet the decision to finally acceptor reject a candidate is to betaken in a just, fair and proper manner. There cannot be anything as "absolute discretion" in law as it is wholly incompatible with the guarantee provided by Article 4 of the Constitution which will be rendered as a pious homilies if the argument of the learned Deputy Attorney‑General was to be accepted. Absolute discretion is a ruthless master and unless it was structured, it was likely to be abused. Thus, such a provision would be ex facie discriminatory.

19. No doubt, according to Regulation No. 10 a squint, without reference to the degree, or defect of vision according to Regulation No.21 are disqualifying factors but the said regulations have to be read with Regulation No.24. The next contention of the learned Deputy Attorney‑General that no ulterior motive has been attributed to the members of the Central Medical Board or the Appellate Board and therefore, their opinion is sacrosanct, suffice it to say that it is not relevant because as held earlier, the mandatory provisions of Regulation No.24 were not kept in view by the Central Medical Board as well as by the Appellate Medical Board in the cases of Dr. Kashir Bashir and Farrukh Bashir. As far as the contention based Article 150 of the Constitution is concerned, the principle will be when it was shown that the public functionaries acted in accordance with law. The effect of non‑compliance of Regulation No.24 was that the three petitioners in this case were not dealt within accordance with law in breach of the guarantee provided by Article 4 of the Constitution. For the order proposed to be made, the other contention of the learned Deputy Attorney/ General that this Court cannot substitute the opinion of the Medical Boards with its own opinion is not required to be examined.

20. For what has been stated above, these writ petitions are allowed. The Federal Government is directed to constitute an Appellate Medical Board at least with two Ophthalmologist and two Medical Specialist to re‑examine the three petitioners. No Ophthalmologist or Medical Specialist or any doctor who was on the Central Medical Board of the Appellate Board or who was consulted by the petitioners shall be member of the said Appellate. Board. The Appellate Medical Board after, re‑examining the petitioner, shall record their clear opinion in terms of Regulation No.24 aforesaid and dispose of their appeals with speaking orders. No order as to costs. H.B.T./F‑172/L Petitions allowed accordingly.